Qinlang and Xin & Ors - [2020] FamCA 702

FAMILY COURT OF AUSTRALIA

QINLANG & XIN AND ORS

[2020] FamCA 702

FAMILY LAW – COSTS – Where the wife seeks a costs order against the husband – where in the alternative, the wife seeks a costs order against the second and third respondents – where the husband was wholly unsuccessful in particular applications – Husband’s conduct in relation to the proceedings

Family Law Act 1975 (Cth) ss 102Q, 117
Family Law Rules 2004 (Cth) r 19.04

Collins & Collins (1985) FLC 91-603

Fitzgerald and Fish (2005) 33 FamLR 123

Penfold v Penfold (1980) 144 CLR 311

Renald & Renald (Costs) (2018) FLC 93-819

SCVG & KLD [2015] FamCA 687

APPLICANT:

Ms Qinlang

1st RESPONDENT:

Mr Xin

2nd RESPONDENT:

Mr B Xin

3rd RESPONDENT:

Ms Wang

FILE NUMBER:

CAC

1782

2018

DATE DELIVERED:

26 August 2020

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

20 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr J Haddock

SOLICITOR FOR THE APPLICANT:

Dobinson Davey Clifford Simpson

SOLICITOR FOR THE 1ST RESPONDENT:

Hijazi Curran Cameron Lawyers

SOLICITOR FOR THE 2ND AND 3RD

RESPONDENTS

Farrar Gesini Dunn

Orders

(1)That pursuant to Section 117(2) of the Family Law Act 1975 (Cth) ("the Act"), the First Respondent pay half of the Applicant's costs of, and incidental to, her Response to an Application in a Case filed 15 May 2020, as agreed or taxed.
(2)That pursuant to Section 117(2) of the Act, the First Respondent pay the Applicant's costs of, an incidental to, the Application in a Case filed by the First Respondent on 28 May 2020, as agreed or taxed.
(3)Should a party pursue costs in respect of this costs determination, then that party is to file written submissions within 14 days of the making of these orders in support of such.
(4)If no party files in accordance with the immediately preceding order, application for the costs of the costs proceedings will be taken to have not been pressed and will be dismissed.
(5)Should submissions be filed in accordance with Order 3 above, then any party resisting costs will be required to file written submissions in response within a further 14 days.
(6)The costs of the costs proceedings will then be determined on the basis of those written submissions, in chambers, unless a party or the Court notifies that further oral address is required.
(7)The proceedings are otherwise transferred to the Registrar’s list pending further application or the listing of the matter for making trial directions.
(8)The next time the matter is listed either before the Registrar or the Court is a designated a court event for the notification of costs pursuant to Rule 19.04.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Xin & Qinlang has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Qinlang and Xin & Ors

Details

AGLC: Qinlang and Xin & Ors [2020] FamCA 702
Case: [2020] FamCA 702
Decision Date: 26 August 2020

CaseChat Overview and Summary

In the matter of *Qinlang and Xin & Ors*, Gill J of the Federal Circuit and Family Court of Australia was required to determine costs orders following earlier proceedings. The dispute concerned applications filed by the parties, with the court's decision focusing on the allocation of legal costs.

The primary legal issue before the court was the appropriate order for costs pursuant to Section 117(2) of the *Family Law Act 1975* (Cth). This involved determining which party should bear the costs associated with specific applications filed by the First Respondent and the Applicant's response to an earlier application.

Gill J ordered that the First Respondent pay half of the Applicant's costs relating to her Response to an Application in a Case filed on 15 May 2020. Furthermore, the First Respondent was ordered to pay the Applicant's costs for the Application in a Case filed by the First Respondent on 28 May 2020. The court also set out a detailed process for any party seeking costs in relation to the costs determination itself, requiring written submissions within specified timeframes. The proceedings were otherwise transferred to the Registrar's list pending further application or trial directions.

Orders

Orders of the court

(1) That pursuant to Section 117(2) of the Family Law Act 1975 (Cth) ("the Act"), the First Respondent pay half of the Applicant's costs of, and incidental to, her Response to an Application in a Case filed 15 May 2020, as agreed or taxed.

(2) That pursuant to Section 117(2) of the Act, the First Respondent pay the Applicant's costs of, an incidental to, the Application in a Case filed by the First Respondent on 28 May 2020, as agreed or taxed.

(3) Should a party pursue costs in respect of this costs determination, then that party is to file written submissions within 14 days of the making of these orders in support of such.

(4) If no party files in accordance with the immediately preceding order, application for the costs of the costs proceedings will be taken to have not been pressed and will be dismissed.

(5) Should submissions be filed in accordance with Order 3 above, then any party resisting costs will be required to file written submissions in response within a further 14 days.

(6) The costs of the costs proceedings will then be determined on the basis of those written submissions, in chambers, unless a party or the Court notifies that further oral address is required.

(7) The proceedings are otherwise transferred to the Registrar’s list pending further application or the listing of the matter for making trial directions.

(8) The next time the matter is listed either before the Registrar or the Court is a designated a court event for the notification of costs pursuant to Rule 19.04.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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